The Daily 202: First Amendment plays an unexpected starring role in Amy Coney Barrett confirmation hearing

“Redress or protest,” Sasse answered, referring to what the Bill of Rights describes as the right “to petition the Government for a redress of grievances.”

Barrett, who has taught law at Notre Dame for two decades and spent three years as a judge on the 7th Circuit, was good-natured about her brain freeze. “Sometimes softballs turn out not to be softballs,” she said later, referring to Sasse’s question.

Sasse lobbed what he intended to be another softball when he asked Barrett to explain why James Madison clustered those five freedoms together. This should have been particularly easy for someone who says her entire judicial philosophy is built around understanding the original intent of the Founding Fathers when they wrote the text of the Constitution.

“I don’t know what you’re getting at on that one,” said Barrett, 48. “You mean like what is the common denominator?”

“I don’t know why, actually,” the judge replied. “I’m sure there’s a story that I don’t know there about why those appeared in the First Amendment all together rather than being split up in different amendments.”

Sasse, who earned a doctorate at Yale in American history, explained to Barrett how the five freedoms were clustered because they are interconnecting. “You don’t really have freedom of religion if you don’t also have freedom of assembly,” he said. “You don’t really have freedom of speech if you can’t also publish your beliefs and advocate for them. You don’t really have any of those freedoms if you can’t protest at times and seek to redress grievances in times when government oversteps and tries to curtail any of those freedoms.”

These unforced errors came amid what was otherwise a very strong performance by Barrett, who answered questions for two full days with only a blank notepad in front of her. Notably, though, senators asked in one form or another about all five of the freedoms enumerated in the First Amendment as they questioned her on Wednesday. While Democrats stayed mostly focused on health care and reproductive rights to score pre-election political points, senators from both parties nevertheless devoted a surprising amount of time to drilling down on jurisprudential concerns stemming from how the Supreme Court has chosen to interpret the First Amendment, from coronavirus lockdown orders to campaign finance and libel law to restrictions on protests outside abortion clinics.

Barrett used a First Amendment example to respond to criticism that her originalist legal philosophy is overly rigid. “The fact that there wasn’t the Internet or computers or blogs in 1791 doesn’t mean that the First Amendment’s free speech clause couldn’t apply to those things now,” she said. “It enshrines a principle, and we understand the principle as it was at the time, but then it’s capable of being applied to new circumstances.”

At another point, Barrett recounted her job interview with the late Justice Antonin Scalia to clerk for him in 1998. “He asked what area of the court’s precedent I thought needed to be better organized, and off-the-cuff I said, ‘Well, gosh, the First Amendment,’” she recalled. “And he said, ‘Well, what do you mean?’ Then I fell down a rabbit hole of trying to explain without success – because it is a very complicated area of the law – how one might see one’s way through the thicket of balancing the Establishment Clause against the Free Exercise Clause. … It’s been something that the court has struggled with for decades, to try to come to a sensible way to apply both of those clauses.”

Trying to respond to Democratic attacks that Roe v. Wade would be in peril with Barrett on the high court, Sen. Mike Lee (R-Utah) highlighted Barrett’s vote as a judge to uphold a Chicago law which established a buffer area around abortion clinics. A three-judge panel upheld the ordinance, which says protesters cannot come within eight feet of individuals to demonstrate or hand out leaflets outside facilities that perform abortions. “You followed that precedent, and you did so as a jurist rather than following whatever personal predilection might have otherwise guided you or any other member of the panel,” Lee said.

Barrett noted that, as a lower court judge, she was bound to follow the Supreme Court decision in Hill v. Colorado that upheld similar restrictions. Once she is a justice, however, that would no longer be the case. Moreover, what Barrett did not say during her exchange with Lee is that the opinion she signed onto actually criticized the Supreme Court precedent as “incompatible with current First Amendment doctrine.”

Two GOP senators asked about the constitutionality of pandemic-related restrictions that have been imposed by Democratic governors. Sen. Josh Hawley (R-Mo.) praised Barrett for ruling last month, along with two other judges on the circuit, against a lawsuit brought by the Republican Party of Illinois, which was aimed at overturning a lockdown order from Gov. J.B. Pritzker (D). The state party lawyers argued that it was unconstitutional for Pritzker to limit political gatherings to no more than 50 people while making an exemption for churches and religious organizations.

Barrett said she believes it is “permissible” for a governor “to carve out an exception for free exercise” of religion and “doing so didn’t compel the government to extend the same protection to everyone.” 

“The point that the panel opinion makes is that the free exercise of religion is singled out for its own protection in the First Amendment, rather than being a subset of speech,” she said. “And the position that the Illinois Republican Party took in that case would have been putting everything under the speech umbrella.”

When Sen. Thom Tillis (R-N.C.) asked about other governors restricting worship services amid the pandemic, Barrett explained that “the Supreme Court’s general position is that the government has a compelling interest in responding to a health crisis of this sort.” But she said a judge also needs to “look at the other amendments and other rights at play.” 

Sen. Sheldon Whitehouse (D-R.I.) brought up the Supreme Court’s 2010 decision in Citizens United during both of his rounds of questioning. On Wednesday, he questioned Barrett about conservatives on the court overturning a 40-year-old precedent in 2018 with their 5-4 decision in Janus v. AFSCME, which restricted the power of labor unions to collect fees from non-union members on free speech grounds.

Sen. Ted Cruz (R-Tex.) sought to refute Whitehouse. “The Democratic dark money efforts dwarf the Republican dark money efforts, which is why without a twinge of hypocrisy Democratic members make this charge repeatedly,” he said. 

Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) used his time to express openness to passing new campaign finance laws. His Democratic challenger, Jaime Harrison, announced Sunday that he raised $57 million in the last three months, the biggest quarterly fundraising haul by any Senate candidate ever. Graham announced Wednesday that he raised $28 million in the same period, which is the most any Republican Senate candidate has ever raised in a quarter.

“Let’s go to Citizens United,” Graham told Barrett. “To my good friend, Senator Whitehouse, me and you are going to come closer and closer about regulating money ‘cause I don’t know what’s going on out there, but I can tell you there’s a lot of money being raised in this campaign,” Graham said. “I’d like to know where the hell some of it’s coming from!” 

Barrett responded that “Citizen United extends the protections of First Amendment to corporations who are engaged in political speech.” Graham asked her: “If Congress wanted to revisit that and somebody challenged it … what would you do? How would the process work?” Barrett gave a non-direct answer.

Sen. Amy Klobuchar (D-Minn.), whose father was a legendary sportswriter and columnist for the Minneapolis Star Tribune, expressed alarm as she questioned Barrett on Wednesday about what she fears is Justice Clarence Thomas’s hostility toward press freedom. In a concurring opinion last year related to a defamation lawsuit brought against Bill Cosby, Thomas called on his fellow justices to reconsider the court’s 1964 decision in New York Times v. Sullivan. That ruling requires plaintiffs to demonstrate “actual malice” on the part of defendants who are public figures in order for them to prevail on a defamation claim. 

“Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own ‘federal rule[s]’ by balancing the ‘competing values at stake in defamation suits,’” Thomas wrote in McKee v. Cosby. “If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.”

Klobuchar asked Barrett whether she agrees that the court should reconsider the actual malice standard because it is inconsistent with the original meaning of the Constitution. “Well, I can’t really express a view on either New York Times v. Sullivan or Justice Thomas’s critique,” she said. “I can’t comment on matters of litigation or grade precedents that the court has already decided.”

Klobuchar also asked about the Supreme Court’s 1972 decision in Branzburg v. Hayes, which relates to journalists being subpoenaed to appear before grand juries. “Many federal courts of appeals have recognized what’s called the reporter’s privilege, which protects a reporter’s First Amendment right to protect his or her sources from disclosure in certain circumstances,” she said. “The 7th Circuit, on which you serve, has rejected a constitutional basis for a reporter’s privilege. Under its original public meaning, does the First Amendment protect a reporter’s decision to protect a confidential source?”

Barrett refused to say. “That would be eliciting a legal conclusion from me, which I can’t answer in a hypothetical form in the hearing,” she said. “It’s also a question … that’s closely related to ones that are being litigated.” 

Klobuchar then asked, generally, whether Barrett would agree that, if reporters cannot protect their sources, they are less likely to be able to find confidential witnesses willing to share information about issues of public importance. Barrett declined to say. “The founders recognized that a free press is vital to a vibrant and strong democracy, and that’s why we need Supreme Court justices who understand the importance of protecting the rights of journalists,” said Klobuchar. 

This was part of a general pattern of evasiveness during her two days of testimony. Barrett refused to espouse a position on whether a president can pardon himself for past or future crimes, whether Trump could unilaterally delay the election if he wanted, whether voter intimidation is unlawful, and so much more.

Sen. Pat Leahy (D-Vt.) asked whether a president could refuse to comply with a court order. “The Supreme Court can’t control what the president obeys,” she said.

Sen. Cory Booker (D-N.J.) asked whether it is morally wrong for government to take immigrant children away from their parents to try deterring immigration, as the Trump administration has done. “That’s a matter of hot political debate in which I can’t express a view or be drawn into as a judge,” she said. 

Sen. Kamala Harris (D-Calif.) asked whether Barrett agrees that “voting discrimination still exists.” She declined to express an opinion. “These are very charged issues,” she said. Harris said it is “a known fact.” Barrett replied: “I think racial discrimination still exists. We have seen evidence of discrimination this summer.”

The Democratic vice-presidential nominee asked whether covid-19 is infectious and smoking causes cancer. Barrett said yes. Then Harris asked if climate change is real and a threat to human health. Barrett said she could not answer because it is a “very contentious matter” that is under public debate.

In addition to saying that she does not consider Roe v. Wade to be “super precedent,” Barrett also said it would be improper for her to endorse the court’s 1965 holding in Griswold v. Connecticut that states could not ban married couples from using contraceptives. Sen. Dick Blumenthal (D-Conn.) pointed out that three other justices appointed by Republican presidents – John Roberts, Thomas and Sam Alito – did not hesitate to endorse Griswold at their own confirmation hearings. 

“I’m stunned,” said Blumenthal. 

“I can’t grade precedent,” said Barrett.

But Barrett was happy to endorse other Supreme Court precedents, including Brown v. Board of Education, which banned “separate but equal” schooling; Loving v. Virginia, which legalized interracial marriage; and Marbury v. Madison, which created judicial review.

“Similarly, Barrett would not comment on the court’s 2003 ruling in Lawrence v. Texas that struck laws criminalizing homosexual conduct or the court’s 2015 ruling [in Obergefell v. Hodges] that said same-sex couples could not be denied the right to marry,” Robert Barnes, Seung Min Kim and Ann Marimow report. “Barrett several times told Democrats that her refusal to endorse certain decisions of the court did not mean they were endangered and said such questioners were pushing her to violate judicial canons of ethics and impartiality. She called it ‘shockingly unlikely’ that any state or federal lawmakers would reinstate bans on birth control and said the Supreme Court decision legalizing contraception is not ‘in danger of going anywhere.’” 

Several of the Democratic senators on the committee openly acknowledged during their questioning that Barrett will get confirmed, albeit on a party-line vote, to replace the late Justice Ruth Bader Ginsburg. The Judiciary Committee is hearing from outside witnesses today and plans a vote on Oct. 22 to advance her nomination. She is on track to be confirmed by the full Senate the week after that.

Asked how she was hanging in there, Barrett mentioned that she had allowed herself to enjoy a glass of wine after finishing her first day before the committee. Over 12 hours, 22 senators had each gotten 30 minutes to ask questions. As her second and final day in the hot seat wrapped up, with the lawmakers all getting another 20 minutes, Graham told her as he gaveled the session to a close: “You can have two glasses of wine tonight.” 

“I plan on it,” she said.

• First look: After Ginsburg’s death, MoveOn experienced a big surge in fundraising. With that money, the liberal group last week added $2 million to its advertising buys against Republican senators in South Carolina, Maine, and Arizona. During the Barrett hearings, the group has raised another $5 million, which it plans to spend on new commercials in those three states, plus Georgia, which Move On has added to its target list.
• A coalition of more than 60 prosecutors and attorneys general from across America vowed not to enforce antiabortion laws, saying they won’t pursue cases, even if Roe is overturned. The statement invokes the power of prosecutorial discretion, which some have used to reduce or eliminate the prosecution of marijuana charges. (Tom Jackman) 
• A federal judge ruled that Tennessee’s 48-hour waiting period law for abortions is unconstitutional because it serves no legitimate purpose while placing an undue burden on women. The 2015 law requires women to make two trips to an abortion clinic, first for counseling and then, at least 48 hours later, for the procedure. (AP)
• Barrett is perhaps the most conservative judge on the 7th Circuit, according to University of Virginia law professors who analyzed more than 1,700 cases before the court. (FiveThirtyEight)
• Public calendars from Notre Dame’s law school show at least seven additional talks that were not disclosed on Barrett’s Senate paperwork, including one with the law school’s anti-abortion group. (CNN)

“Obamacare is on the ballot,” Graham said during Barrett’s hearing.

“A fresh-faced Republican activist named Charlie Kirk stepped into the spotlight at a closed-door gathering of leading conservatives and shared his delight about an impact of the coronavirus pandemic: the disruption of America’s universities. So many campuses had closed, he said, that up to a half-million left-leaning students probably would not vote. ‘So, please keep the campuses closed,’ Kirk, 26, said in August as the audience cheered,” Robert O’Harrow Jr. reports. “The gathering in Northern Virginia was organized by the Council for National Policy, a little-known group that has served for decades as a hub for a nationwide network of conservative activists and the donors who support them. Members include Ginni Thomas, wife of [Clarence Thomas], and Leonard Leo [of the Federalist Society], an outside adviser to [Trump] who has helped raise hundreds of millions of dollars from undisclosed donors to support … the nominations of conservative federal judges.

“Videos provided to The Post — covering dozens of hours of CNP meetings over three days in February and three in August — offer an inside view of participants’ obsessions and fears at a pivotal moment in the conservative movement. … ‘This is a spiritual battle we are in. This is good versus evil,’ CNP’s executive committee president, Bill Walton, said on Aug. 21, addressing attendees at the Ritz-Carlton in Pentagon City. ‘We have to do everything we can to win.’ Tom Fitton, president of Judicial Watch, … called on the audience to find a way to prevent mail-in ballots from being sent to voters. … 

“At the February meetings, attendees discussed plans for seeking an advantage in the upcoming vote. Two said the right will begin ‘ballot harvesting,’ a controversial technique that involves the collection and delivery of sealed absentee ballots from churches and other institutions. … Ralph Reed, chairman of the nonprofit Faith & Freedom Coalition, told the CNP audience that conservatives are embracing the technique … J. Christian Adams, a former Justice Department official and the president of the Public Interest Legal Foundation, a charity, … urged the activists not to worry about the criticism that might come their way. ‘Be not afraid of the accusations that you’re a voter suppressor, you’re a racist and so forth,’ Adams said. …

“Marcus Owens, a lawyer who led the Exempt Organizations Division at the IRS from 1990 to 2000, told The Post that participants’ comments on the videos raise potential issues of compliance with election laws and charity rules. ‘I’ve never seen anything like it on videotape and live,’ Owens said, referring to the overt partisan coordination among the nonprofit leaders. ‘It’s almost like a movie.’

“Some participants spoke of a CNP-associated delegation that meets weekly with White House officials. They said the group, the Conservative Action Project, has helped to choose loyalists to run federal agencies and coordinate outside messages with nonprofit organizations to support administration policies and leaders. ‘It’s kind of this little secretive huddle that meets every Wednesday morning,’ Paul Teller, a Trump deputy and director of strategic initiatives for Vice President Pence, told the audience in August. …

“Kelly Shackelford was introduced as CNP vice president, chairman of CNP Action and leader of the First Liberty Institute, another organization registered as a tax-exempt charity. He bragged about extensive behind-the-scenes coordination by his group and other nonprofit organizations to influence the White House selection of federal judges. ‘Some of us literally opened a whole operation on judicial nominations and vetting,’ he said. ‘We poured millions of dollars into this to make sure the president … picks the best judges.’ Shackelford said he is among the nonprofit leaders now coordinating with the White House to support” Barrett’s confirmation.”

“Trump’s personal attorney Rudolph W. Giuliani and his former top adviser Stephen K. Bannon … helped make public private materials purported to belong to Joe Biden’s son in an attempt to swing support to the struggling incumbent,” Matt Viser, Paul Sonne and Annie Linskey report. “The Washington Post was unable to verify the authenticity of the alleged emails and other correspondence that the New York Post published Wednesday and said had come from the younger Biden’s computer and hard drive. … The New York Post, which is owned by conservative media tycoon Rupert Murdoch, said its report was based on materials it said it heard about from Bannon and were provided by Giuliani. … The report Wednesday did not markedly advance what is already known about Hunter Biden’s foreign business dealings, other than to suggest that at one point he gave Vadym Pozharskyi, a Ukrainian business colleague, ‘an opportunity’ to meet his father. The Biden campaign said the vice president’s schedule indicated no such meeting. … Hunter Biden’s attorney, George Mesires, told The Post that ‘this purported meeting never happened.’ Pozharskyi, who works for Burisma, the Ukrainian gas firm that included Hunter Biden on its board from 2014 to 2019, could not be reached for comment. …

“Wednesday’s report was met with skepticism, particularly from social media companies that sought to limit the spread of the news. Several intelligence experts also were skeptical of the report — and the stated origins of the hard drive purported to belong to Biden’s son — saying that it had the characteristics of a carefully planned information operation designed to affect an American election. Thomas Rid, author of ‘Active Measures,’ a book about disinformation, said hacking, forging and leaking information selectively are among the most effective disinformation methods, and raised suspicions about the material the New York Post published. ‘Usually when emails are leaked, what investigators look for is the actual email file, and we don’t have that here,’ Rid said, raising alarms that the emails do not include metadata, which can be used to verify the date, sender and recipient. …

“John Paul MacIsaac, who said he owns a computer repair shop in Wilmington, Del., told The Post on Wednesday that the laptop in question was one of three damaged computers brought to his shop in April 2019. Repairing it required an involved process, he said, so he continued working on it using the password the customer provided. He said he determined the data could be moved to an external hard drive and asked the customer to return and provide a hard drive, which he said the customer did. MacIsaac, who described himself as legally blind, said that he was almost certain the customer was Hunter Biden. … 

“MacIsaac said that he saw some of the contents, including what he described as multiple files, and contacted at least three members of Congress, whom he would not name. He also said that he contacted the FBI using an intermediary, whom he also would not name. He said the agents initially told him they didn’t want to take possession of the hard drive and instead made a copy of it, but returned later in the year with a subpoena to take it. … In late 2019, before he handed the equipment to the FBI, ­MacIsaac — who says he is fiscally conservative and socially liberal — made a copy of the contents of the hard drive. He grew frustrated that the contents of the laptop hadn’t become public, and over the summer he decided to contact Giuliani.”

“On the afternoon of Feb. 24, Trump declared on Twitter that the coronavirus was ‘very much under control’ in the United States [and] even added an observation for investors: ‘Stock market starting to look very good to me!’ But hours earlier, senior members of the president’s economic team, privately addressing board members of the conservative Hoover Institution, were less confident,” the New York Times reports. “Tomas J. Philipson, a senior economic adviser to the president, told the group he could not yet estimate the effects of the virus on the American economy. … The next day, board members — many of them Republican donors — got another taste of government uncertainty from Larry Kudlow, the director of the National Economic Council.”

Hedge fund consultant William Callanan, who attended the gathering, wrote a memo explaining what he had heard, and it spread like wildfire across the top echelons of the investment world. “Traders spotted the immediate significance: The president’s aides appeared to be giving wealthy party donors an early warning of a potentially impactful contagion at a time when Mr. Trump was publicly insisting that the threat was nonexistent,” the Times notes. “Callanan described the Hoover briefings in a lengthy email he wrote to David Tepper, the founder of the well-known hedge fund Appaloosa Management … Inside Appaloosa, the email circulated among employees, who in turn briefed at least two outside investors … Those investors in turn passed the information to their own contacts, ultimately delivering aspects of the readout to at least seven investors in at least four money-management firms around the country within 24 hours. By late afternoon on Feb. 26, the day the email bounced from Appaloosa to other trading firms, U.S. stock markets had fallen close to 300 points from their high the previous week.”

She announced the precaution after two people involved with her campaign tested positive for the coronavirus. The campaign identified the individuals as Liz Allen, Harris’s communications director, and a “non-staff flight crew member.” The senator was scheduled to make appearances in North Carolina this afternoon. Harris tested negative for the virus on Wednesday, and the campaign said she was not in close contact with those who got it.

“Treasury Secretary Steven Mnuchin said Wednesday that a new economic relief bill is unlikely before the election, suggesting that Democrats are unwilling to give Trump a victory,” Erica Werner and Jeff Stein report. “Mnuchin made his comments after an hour-long conversation he had earlier Wednesday with House Speaker Nancy Pelosi (D-Calif.). … Mnuchin made Pelosi a $1.8 trillion offer on Friday that she rejected as inadequate in many respects, including the administration not agreeing to specifics on a national coronavirus testing strategy. … Pelosi’s spokesman, Drew Hammill, said on Twitter that Pelosi and Mnuchin had a ‘productive’ conversation and would speak again on Thursday. … Mnuchin criticized Pelosi’s focus on a comprehensive deal, saying they could and should act immediately to help specific sectors, such as airlines that have begun mass furloughs after federal aid expired at the end of September.”

The number of new unemployment claims jumped last week. States across the country processed 898,000 new unemployment claims, up more than 50,000 from the previous week, the largest increase in first time jobless applications in recent weeks. (Eli Rosenberg)

“Despite the outbreak at the White House that also infected the first lady, their son and nearly a dozen top aides, Trump and his allies continue to downplay the virus, arguing that the country is ‘turning the corner’ and holding campaign events with thousands of supporters even as cases are increasing rapidly, especially in the Midwest,” Josh Dawsey and Yasmeen Abutaleb report. “Several advisers hoped Trump’s experience would move him to speak more empathetically about a virus that has killed at least 215,000 Americans and infected nearly 8 million. Instead, Trump has seemed further emboldened, flouting public health guidelines to convince voters that life is returning to normal, according to current and former administration officials. … ‘He looks completely out of touch,’ said Mike DuHaime, a Republican consultant close to former New Jersey governor Chris Christie and campaign manager Bill Stepien, both of whom were infected with the virus. ‘He doesn’t appreciate what it would be like for a regular person. He gets the best medical treatment of everyone in the world and is acting like he’s Superman.’ … 

“Private polling shared among campaign advisers, as well as public polls, shows Trump’s handling of the pandemic remains his biggest albatross — and is among the top concerns for voters in swing states. … ‘The smart move for him politically is to say, ‘I’m a changed man,’’ said one former senior administration official. … ‘If he doesn’t say, ‘Hey this is a bad disease, I was lucky, but I feel your pain, America,’ then he is toast. But maybe I’m wrong.’”

More broadly, Trump is struggling to sharpen his closing argument against Biden. “In the final stretch of the race, a trio of long-standing challenges have converged to create a daunting barrier to Trump’s reelection: the inability to drag down Biden’s favorability ratings, the lack of a clearly articulated ­second-term agenda, and a pandemic,” Toluse Olorunnipa and Dawsey report. “Trump is attempting to stage a historic comeback. But his actions and rhetoric in recent days have stumped even some of his allies who are trying to decipher his broader strategy — and, increasingly, questioning whether there is one.”

First Lady Melania Trump, 50, revealed that their son Barron, 14, tested positive after she and the 74-year-old president had, but they’ve all since tested negative. “Luckily he is a strong teenager and exhibited no symptoms,” she wrote in an essay published Wednesday by the White House. “I was very fortunate as my diagnosis came with minimal symptoms, though they hit me all at once and it seemed to be a roller coaster of symptoms in the days after. I experienced body aches, a cough and headaches, and felt extremely tired most of the time. I chose to go a more natural route in terms of medicine, opting more for vitamins and healthy food.”

“The seven-day rolling average of new cases across Virginia, Maryland and the District stood at 1,801 — the highest since the average hit 1,916 cases Aug. 13. The increase has coincided with cooler temperatures and an outbreak at the White House, although local health officials say any connection to a late-September Rose Garden event is unclear,” Julie Zauzmer and Ovetta Wiggins report. “Among patients who contracted the novel coronavirus in D.C. in the first week of October, nearly a quarter had attended a social gathering of at least five people in the two weeks before they got sick, city Health Director LaQuandra Nesbitt said Wednesday. One out of 5 had eaten at a restaurant.”

That is the conclusion of fascinating new research from political scientists Michael Hartney and Leslie Finger at Boston College and the University of Texas. They analyzed reopening plans for 10,000 public school districts and discovered that the percentage of students attending classes in-person this fall was strongly correlated with the share of the vote that Trump received in the surrounding county in 2016. (Antonia Farzan)

• University of Alabama football coach Nick Saban tested positive. Saban, 68, said he’ll work from home while the team’s offensive coordinator oversees operations. Alabama, ranked second, is set to host third-ranked Georgia in a highly anticipated matchup on Saturday. (Des Bieler)
• Saturday’s game between Florida and LSU was postponed until December after players for the Gators tested positive. (Cindy Boren and Matt Bonesteel)
• Barred from attending football games, Nebraska fans will gather indoors for a watch party, seating in a physically distant pod arrangement. Masks will be required for all in attendance. (Bonesteel)

“In Germany, 6,638 cases were reported over the past 24 hours, while the Czech Republic announced a new high of 9,544 cases. Slovakia report 1,929 new cases, also its biggest one-day tally since the pandemic began,” Farzan reports. “Italy, Portugal and Slovenia have also seen record numbers of new cases in recent days.” 

• France’s Emmanuel Macron announced a new curfew as infections rise. People will have to stay home between 9 p.m. and 6 a.m., starting Saturday, for at least four weeks. “It’s hard to be 20 in 2020,” Macron said, acknowledging the impact on young people who like to party. (James McAuley)
• The British opposition is complaining that BCG consultants helping the government with testing and tracing are being paid around $9,000 per day, according to Sky News. That’s a discount from the firm’s normal rate, but it’s still equivalent to an annual salary of nearly $2 million per consultant. The average salary of a National Health Service nurse is about $42,000 a year. (Jennifer Hassan)

The nation’s top infectious-disease expert told CBS that surging case numbers in many areas of the country may make it unwise to hold large family gatherings at Thanksgiving this year, particularly if elderly relatives or out-of-state travel are involved. “You may have to bite the bullet and sacrifice that social gathering, unless you’re pretty certain that the people that you’re dealing with are not infected,” Fauci said, adding that his own three children will not be coming home for Thanksgiving because his age puts him at elevated risk. (The Post)

Biden announced that his campaign and the DNC raised a record-breaking sum that leaves him flush with cash, Colby Itkowitz, Felicia Sonmez, John Wagner and Paulina Firozi report. The amount raised in one month beat the Democrats’ record-shattering August haul of $364.5 million. The Trump campaign hasn’t shared its September fundraising numbers yet. In August, Trump’s team and the Republican National Committee raised $210 million. “There is still a long way to go in this campaign, and we think this race is far closer than folks on this website think. Like a lot closer,” Biden campaign manager Jen O’Malley Dillon tweeted of the $383 million haul.

The second presidential debate was supposed to be tonight, but it was canceled. Instead, the candidates will hold dueling town halls. Trump will appear on NBC in Miami and Biden will be on ABC in Philadelphia from 8 p.m. to 9 p.m. Eastern.

Biden has an 11-point national lead over Trump, according to a new WSJ-NBC News poll, down from 14 points earlier this month. In a new Monmouth University poll, Biden is up 6 points. He is up 8 points in Georgia, according to a Quinnipiac University poll, which found Ohio neck and neck. Biden leads by 4 points in North Carolina, according to an NYT-Siena survey, which also found that Sen. Thom Tillis (R) trails Democratic challenger Cal Cunningham by 4 points, despite the recent revelations that Cunningham sexted with a Democratic consultant who is not his wife.

“Roughly 15 million Americans have already voted in the fall election, reflecting an extraordinary level of participation despite barriers erected by the coronavirus pandemic — and setting a trajectory that could result in the majority of voters casting ballots before Election Day for the first time in U.S. history,” Amy Gardner and Elise Viebeck report. “In Georgia this week, voters waited as long as 11 hours to cast their ballots on the first day of early voting. In North Carolina, nearly 1 in 5 of roughly 500,000 who have returned mail ballots so far did not vote in the last presidential election. In Michigan, more than 1 million people — roughly one-fourth of total turnout in 2016 — have already voted. The picture is so stark that election officials around the country are reporting record early turnout, much of it in person, meaning that more results could be available on election night than previously thought. 

“So far, much of the early voting appears to be driven by heightened enthusiasm among Democrats. Of the roughly 3.5 million voters who have cast ballots in six states that provide partisan breakdowns, registered Democrats outnumber Republicans by roughly 2 to 1, according to a Washington Post analysis of data in Florida, Iowa, Maine, Kentucky, North Carolina and Pennsylvania. Additionally, those who have voted include disproportionate numbers of Black voters and women, according to state data — groups that favor Biden over Trump in recent polls.”

• “With millions of mailed ballots already pouring in, early holiday shopping and mega retail events like Amazon’s Prime Day threaten to expose vulnerabilities inside the nation’s mail service, which already is dragging from skyrocketing package volumes,” Jacob Bogage and Abha Bhattarai report. (Jeff Bezos, the chief executive of Amazon, owns The Post).
• The California GOP said it will not comply with the state’s cease-and-desist order to get rid of its unauthorized ballot drop boxes. GOP spokesman Hector Barajas said the “Ballot harvesting program will continue,” CNN reports.
• A federal judge ruled that North Carolina can extend its deadline to count absentee ballots postmarked by Election Day through Nov. 12, despite objections from the Trump campaign. The judge ruled, however, that absentee voters must still have a witness sign their ballots for them to be valid. (BuzzFeed News)
• A federal judge extended Virginia’s voter registration deadline through Thursday after a severed fiber-optic cable kept voters from registering online most of Tuesday, which was supposed to have been the last day to do so. (Antonio Olivo)
• Massachusetts Republican Gov. Charlie Baker said he won’t vote for Trump. “The governor cannot support Donald Trump for president and is focused on seeing Massachusetts through the pandemic,” spokeswoman Lizzy Guyton said in a statement.

• The planet just recorded its hottest September since at least 1880, according to three of the authoritative temperature-tracking agencies in the world. The data shows that 2020 is on track to be one of the hottest years on record, with the possibility of tying or breaking the milestone for the hottest year, set in 2016. (Andrew Freedman)
• Two American hostages were released by Yemeni rebels in exchange for the release of 300 imprisoned militants. The agreement freeing Sandra Loli, an aid worker held hostage for three years, and Mikael Gidada, a businessman held for nearly a year, was only grudgingly accepted by U.S. ally Saudi Arabia, which is angry Trump just pushed to put hundreds of rebels back on the battlefield, thereby prolonging the conflict. (Anne Gearan, Ali al Mujahed and Sudarsan Raghavan)
• Kyrgyzstan’s president stepped down in an attempt to end protests engulfing his country after disputed parliamentary elections. (Los Angeles Times)
• Thousands of protesters took over Bangkok’s busiest intersections, defying an emergency decree issued to put an end to months of anti-monarchy demonstrations in Thailand. The unrest has pushed the kingdom into a dangerous chapter of volatile politics, as a largely youth-led movement takes aim at the once-untouchable king. (Shibani Mahtani)
• The U.S. Army plans to introduce a policy calling for more urgency in finding missing soldiers following a handful of high-profile disappearances at Fort Hood that left families frustrated over search efforts. (Alex Horton)
• The number of migrants Border Patrol took into custody rose to a 13-month high in September, according to federal figures belying Trump’s attempts to tout his enforcement record. Agents made 54,771 apprehensions along the Mexican border last month, the highest total for the month of September since 2006. (Nick Miroff)
• Amy Cooper, the New York White woman who drew national scorn after a Black man recorded her complaining to the 911 operator she was being harassed by him in New York’s Central Park, called police a second time and further lied by alleging he “tried to assault” her, according to prosecutors. She’s been charged with a misdemeanor count of falsely reporting an incident. (Shayna Jacobs)

Sen. Mitt Romney (R-Utah) tried out a hip mask: 

This is what Trump’s Iowa rally looked like last night, despite warnings from local and federal public health officials that it may become a “superspreader” event:

President Barack Obama lashed out against Trump, saying he has removed all “guardrails,” during an interview with former aides for their “Pod Save America” podcast:

Jimmy Kimmel said voting advice is starting to sound like the stuff on emergency preparedness pamphlets: 

Trevor Noah explained the growing danger of militias: